BILL NUMBER: AB 540	CHAPTERED  07/26/99

	CHAPTER   176
	FILED WITH SECRETARY OF STATE   JULY 26, 1999
	APPROVED BY GOVERNOR   JULY 26, 1999
	PASSED THE SENATE   JULY 15, 1999
	PASSED THE ASSEMBLY   MAY 20, 1999
	AMENDED IN ASSEMBLY   MAY 6, 1999

INTRODUCED BY   Assembly Member Machado

                        FEBRUARY 18, 1999

   An act to amend Section 411.35 of the Code of Civil Procedure,
relating to malpractice actions.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 540, Machado.  Malpractice actions:  architects, engineers, or
surveyors.
   Existing law requires the attorney for the plaintiff or
cross-complainant in any action arising out of the professional
negligence of an architect, professional engineer, or land surveyor
to file a certificate declaring either that the attorney has
consulted and received an opinion from an architect, professional
engineer, or land surveyor, licensed to practice in this state or in
any other state, or that the attorney was unable to obtain that
consultation for specified reasons.
   This bill would require the certificate to be served in addition
to being filed.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 411.35 of the Code of Civil Procedure is
amended to read:
   411.35.  (a) In every action, including a cross-complaint for
damages or indemnity, arising out of the professional negligence of a
person holding a valid architect's certificate issued pursuant to
Chapter 3 (commencing with Section 5500) of Division 3 of the
Business and Professions Code, or of a person holding a valid
registration as a professional engineer issued pursuant to Chapter 7
(commencing with Section 6700) of Division 3 of the Business and
Professions Code, or a person holding a valid land surveyor's license
issued pursuant to Chapter 15 (commencing with Section 8700) of
Division 3 of the Business and Professions Code on or before the date
of service of the complaint or cross-complaint on any defendant or
cross-defendant, the attorney for the plaintiff or cross-complainant
shall file and serve the certificate specified by subdivision (b).
   (b) A certificate shall be executed by the attorney for the
plaintiff or cross-complainant declaring one of the following:
   (1) That the attorney has reviewed the facts of the case, that the
attorney has consulted with and received an opinion from at least
one architect, professional engineer, or land surveyor who is
licensed to practice and practices in this state or any other state ,
or who teaches at an accredited college or university and is
licensed to practice in this state or any other state, in the same
discipline as the defendant or cross-defendant and who the attorney
reasonably believes is knowledgeable in the relevant issues involved
in the particular action, and that the attorney has concluded on the
basis of this review and consultation that there is reasonable and
meritorious cause for the filing of this action.  The person
consulted may not be a party to the litigation .  The person
consulted shall render his or her opinion that the named defendant or
cross-defendant was negligent or was not negligent in the
performance of the applicable professional services.
   (2) That the attorney was unable to obtain the consultation
required by paragraph (1) because a statute of limitations would
impair the action and that the certificate required by paragraph (1)
could not be obtained before the impairment of the action.  If a
certificate is executed pursuant to this paragraph, the certificate
required by paragraph (1) shall be filed within 60 days after filing
the complaint.
   (3) That the attorney was unable to obtain the consultation
required by paragraph (1) because the attorney had made three
separate good faith attempts with three separate architects,
professional engineers, or land surveyors to obtain this consultation
and none of those contacted would agree to the consultation.
   (c) Where a certificate is required pursuant to this  section,
only one certificate shall be filed, notwithstanding that multiple
defendants have been named in the complaint or may be named at a
later time.
   (d) Where the attorney intends to rely solely on the doctrine of
"res ipsa loquitur," as defined in Section 646 of the Evidence Code,
or exclusively on a failure to inform of the consequences of a
procedure, or both, this section shall be inapplicable.  The attorney
shall certify upon filing of the complaint that the attorney is
solely relying on the doctrines of "res ipsa loquitur" or failure to
inform of the consequences of a procedure or both, and for that
reason is not filing a certificate required by this section.
   (e) For purposes of this section, and subject to Section 912 of
the Evidence Code, an attorney who submits a certificate as required
by paragraph (1) or (2) of subdivision (b) has a privilege to refuse
to disclose the identity of the architect, professional engineer, or
land surveyor consulted and the contents of the consultation.  The
privilege shall also be held by the architect, professional engineer,
or land surveyor so consulted.  If, however, the attorney makes a
claim under paragraph (3) of subdivision (b) that he or she was
unable to obtain the required consultation with the architect,
professional engineer, or land surveyor, the court may require the
attorney to divulge the names of architects, professional engineers,
or land surveyors refusing the consultation.
   (f) A violation of this section may constitute unprofessional
conduct and be grounds for discipline against the attorney, except
that the failure to file the certificate required by paragraph (1) of
subdivision (b), within 60 days after filing the complaint and
certificate provided for by paragraph (2) of subdivision (b), shall
not be grounds for discipline against the attorney.
   (g) The failure to file a certificate in accordance with this
section shall be grounds for a demurrer pursuant to Section 430.10 or
a motion to strike pursuant to Section 435.
   (h) Upon the favorable conclusion of the litigation with respect
to any party for whom a certificate of merit was filed or for whom a
certificate of merit should have been filed pursuant to this section,
the trial court may, upon the motion of a party or upon the court's
own motion, verify compliance with this section, by requiring the
attorney for the plaintiff or cross-complainant who was required by
subdivision (b) to execute the certificate to reveal the name,
address, and telephone number of the person or persons consulted with
pursuant to subdivision (b) that were relied upon by the attorney in
preparation of the certificate of merit.  The name, address, and
telephone number shall be disclosed to the trial judge in an
in-camera proceeding at which the moving party shall not be present.
If the trial judge finds there has been a failure to comply with
this section, the court may order a party, a party's attorney, or
both, to pay any reasonable expenses, including attorney's fees,
incurred by another party as a result of the failure to comply with
this section.
   (i) For purposes of this section, "action" includes a complaint or
cross-complaint for equitable indemnity arising out of the rendition
of professional services whether or not the complaint or
cross-complaint specifically asserts or utilizes the terms
"professional negligence" or "negligence."
